Denver Personal Injury Lawyer - Miscellaneous

Utterly Un-American - Are You Really Innocent Until Proven Guilty?

Darin Schanker — Tue, 12 Aug 2008 13:05:51 GMT

I know, for a fact, that if you google my name there are four or five of my counterparts that spring up. And there are some odd similarities that spring up, there is another Nathan Swanson in Colorado, two who went to colleges that I considered. I’ve never met any of them, but the fact that there are a number of people with the same name and some similarities to my life is always fascinating.

Fascinating, till it turns problematic. It seems that the Denver Police Department has a little problem with mistaken identity, and the ACLU has filed a federal lawsuit, demanding the city fix a broken system where the police throw people who are clearly not the criminals in jail. And I mean clearly, like not fitting the description of the accused, or not having the tattoos and known features of the accused, or having different names.

Driving to work today, I was listening to a segment about this very case on the news, and I heard a Denver official state, and I’m paraphrasing, something to the effect of that there needed to be a balance between ensuring that innocent people are not hassled and guilty people are not released. Except there is no balance; there are basic precepts of our justice system that are being ignored here. Chief among them “innocent till proven guilty” and “rather 100 guilty men go free then 1 innocent be punished.” The DPD seems to think that once they have someone, then it is wrong to let that person go until every doubt is removed as to their identity. But that is just the opposite of what the police should be doing, they should not be arresting people unless they have no doubt what so ever that this

is the person they want. To do anything else is, and I say this with only a little bit of melodrama and hyperbole, utterly un-American.

Nathan T. Swanson
Summer Intern
JD Candidate, 2009
University of Denver

Originally posted at InjuryBoard by Darin Schanker

A New Supreme Court Decision: Forfeiture by Wrongdoing Explored Further

Kyle Bachus — Fri, 27 Jun 2008 17:09:15 GMT

A defendant has a constitutional right to confront a witness that is accusing him. The basic rule is that prior statements cannot be used unless the defendant has had a chance to cross exam the witness. There are two exceptions that have been recognized: if the statements are made as the witness is dying or that the defendant forfeits his constitutional right by wrongdoing.

Forfeiture by wrongdoing refers to when the witness is detained or kept by means or procurement of a defendant from testifying. Justice Alito wrote the opinion in Crawford which held that a defendant could not keep a witness from testifying and then have prior statements excluded. However, in Giles v. California , No. 07-6053, the Court further interpreted this exception. The interpretation of the word procurement can mean just that the defendant caused the absence, but can also mean that it is limited to causing that is designed to bring about the result procured.

The Giles opinion held that the defendant did not detain the witness with the design to keep the witness from testifying. This is true since the defendant is on trial for the murder of his girlfriend, who is the witness. She had told police that the defendant had threatened to kill her when he beat her 3 weeks prior to her death. The Supreme Court decided that since he did not kill her to keep her from testifying, it violated his constitutional right to confront the witness to have her statements to the police admitted into evidence of trial.

It is understandable to need to keep interpretations narrow so not too be so over-inclusive as to deteriorate the defendant’s constitutional rights. Constitutional rights are important and should not be sacrificed. However, the distinction that he didn’t kill her to keep her from testifying does not sit well with me as a reason that he has not forfeited his right of confrontation. He is still the reason she is not able to testify. He killed her, which I see as a wrongdoing.

A post by Lauren Altdoerffer, created when the Supreme Court granted certiorari, posed the question whether the Court would follow the defendant’s assertion that the forfeiture by wrongdoing does not apply because he did not kill with the intention to silence her testimony or follow the “maxim” in Reynolds v. US that a defendant cannot benefit from his wrongdoing. The answer appears to be the former.

Erica Baasten

Summer Intern 2008

J.D. Candidate 2010

University of Colorado

Originally posted at InjuryBoard by Kyle Bachus

The Fair Act – How Does It Effect Colorado Consumers?

Kyle Bachus — Thu, 12 Jun 2008 04:00:00 GMT

"Fair Accountable Insurance Rates Act," also known as the FAIR Act, claims to provide easy access to health and automobile insurance coverage for all Coloradans and create new reporting requirements for the insurance companies.

Obviously, the raw effect on consumers without this requirement is easy to see. Multi-billion dollar insurance companies could and probably did what they pleased without any recourse or consequences, even if it meant offering unaffordable coverage.

The Fair Accountable Insurance Rates Act eerily resembles the Sarbanes Oxley Act passed by Congress in 2002, in an effort to restore faith in the accuracy of corporate financial audits and eliminate future Enron's and WorldCom's. Basically, Sarbanes Oxley serves as a watchdog over corporations registered with the Securities Exchange Commission.

It all sounds good for consumers, doesn't it? Unfortunately, Sarbanes Oxley has been criticized for a few weaknesses, some of which may likely happen as a result of the FAIR Act. For example, costs to a company to implement the regulations take time and money away from the consumer product, especially in smaller companies with fewer resources. Also, in a real world context, employees hired by a corporation to essentially "whistle-blow" to the SEC for corporations' willfully withholding material information have few incentives to tattle tale, for fear of discrimination or demotion.

As for the FAIR Act, some questions come to mind. What if an insurance company's rate is currently high, will they go through the trouble required by the Act to lower the rates? If a company does go through all the trouble, the commissioner of insurance still has the authority to declare a rate is too low, or "inadequate." And, who is this insurance commissioner with all the power? Is he or she a neutral decision maker?

Patricia-Anne Tom, of the Insurance Journal, brought light to the potential effects of the FAIR Act. Insurers were understandably opposed to the bill. Kelly Campbell, the regional manager for Property Casualty Insurers Association of America (PCI) sees the FAIR Act as a “classic example of over-regulation.” PCI says the prior approval regulatory system and new reporting requirements will add costs and delays without providing any consumer benefit. Campbell also adds that establishing prior approval of prices will preclude companies from adapting to changes in the market and this process will serve only to hurt consumers. Campbell claims the FAIR Act gives the commissioner of insurance some very broad powers.

As for whether Campbell’s insights are true, Colorado must wait and see. One thing is for sure; insurers' have a significant load of work to do in the future.

Niki Skaggs
Law Clerk
J.D. Candidate 2009
University of Denver

Originally posted at InjuryBoard by Kyle Bachus

The Fair Act - Is this Colorado's Version of the Sarbanes Oxley Act for Health and Auto Insurers?

Kyle Bachus — Tue, 10 Jun 2008 17:35:12 GMT

A new Colorado regulation is hanging over the heads of Health and Automobile Insurers-and we call it the "Fair Accountable Insurance Rates Act," also known as the FAIR Act.

This new Act claims to provide easy access to health and automobile insurance coverage for all Coloradans and create new reporting requirements for the insurance companies.

Authored by local Democrats, Rep. Morgan Carroll (Aurora) and Sen. Paula Sandoval (Denver), and approved and signed by Governor Bill Ritter on June 5, 2008, the Act promises what appears to be a good thing...right?

Colorado rates are said to be the 7^th most expensive in the country, and the increasing rates combined with the declining coverage surely sparked this legislative change, according to Rep. Carroll.

After much thought, the general assembly has agreed that insurance rates should not be excessive, inadequate, or unfairly discriminatory. In order to achieve this goal, certain insurance rates will now be subject to pre-approval, based on established benefit ratio standards, by the commissioner of insurance.

In an effort to provide accessible and affordable health and automobile coverage, the Act requires each insurance carrier to file with the commissioner of insurance a detailed description of its rating and renewal practices, and such information to be public when filed.

The Act also requires each insurance carrier to file annually with the commissioner the number of lives insured in the previous year, as well as requires requested rate filing increases for health and automobile insurance to be submitted to the commissioner of insurance at least 60 days prior to the proposed implementation date.

Although the Act allows the rates to be implemented if the commissioner of insurance does not approve the rates within the 60-day period, it also authorizes the commissioner to disapprove rates upon later review.

The commissioner of insurance is required to disapprove rates if certain conditions apply and insurance carriers must report to the division of insurance if specific reasons apply to an increase in rates for health and automobile insurance. The division of insurance is required to track such information and make it public.

Also, the Act prohibits persons from willfully withholding information that will affect rates or premiums charged or from giving false or misleading information and violation will result in penalty. And lastly, the Act requires that use of credit information for underwriting purposes be open to the public.

Before the Act was signed, Colorado law did not require insurance companies to justify their rate increase before it took effect.

Niki Skaggs
Law Clerk
J.D. Candidate 2009
University of Denver

Coming Up Next: The Fair Act – How Does It Effect Consumers?

Originally posted at InjuryBoard by Kyle Bachus

The Heparin Debacle Part Two - Chinese Officials Play the Blame Game

Linda Snyder — Fri, 25 Apr 2008 21:17:41 GMT

Chinese officials have finally acknowledged that there is a contaminant in heparin produced in China, but it is not connected to the illnesses. Ning Chen, second secretary at the Chinese Embassy claims, “We don’t have a strong evidence to show that is heparin or its contaminant that caused the problem.” Mr. Chen asserts that since the adverse reactions and deaths only occurred in the United States, the problems originated here.

According to the director of the FDA’s drug center, Janet Woodcock, German officials have found adverse reactions in dialysis patients who took contaminated heparin.

Dr. Woodcock continues, “Heparin should not be contaminated, regardless of whether or not that contamination caused adverse events. We are fairly confident based on the biological information that we have had that this contaminant is capable of triggering these adverse reactions.”

And we all know, the best defense is a good offsense…Chinese officials are now insisting that the United States’ request for American inspections of Chinese company’s be a two way street and China be allowed to inspect US facilities.

In light of China’s history of exporting toys containing lead, tainted rice, poisonous toothpaste, toxic pet food, tainted fish and now contaminated drugs, you would think China would be bending over backwards to fix this latest debacle. And you would think in light of the FDA’s track record lately (Vioxx ghosted studies, Vytorin and Zetia) they would make it a priority to hold China to a minimum safety standard.

So, what does the FDA do? They send Changzhou SPL, the Chinese plant that supplied the contaminated heparin to Baxter International a warning letter. The letter warned that the plant used unclean tanks to make heparin, that it accepted raw materials from an unacceptable vendor and that it had no adequate way to remove impurities. I’m sure that based on that warning letter, Changzhou SPL will never, ever, ever produce a contaminated product ever again.

China also claims that they can/will/have been testing heparin for contaminants. The FDA counterclaims China technology is not sensitive enough to detect the contaminant.

So, the blame game continues…

Up Next: The Heparin Debacle Part Three - The FDA Falls Flat

Originally posted at InjuryBoard by Linda Snyder

Parents Sue Bully. School District Next?

Linda Snyder — Thu, 27 Mar 2008 19:45:02 GMT

I find the whole concept of bullying to be interesting. You get a bunch of kids who decide that another kid is, for whatever reason, is a target for mental and physical abuse. And because bullying has been around since the time of cavemen, it's a somewhat socially acceptable behavior. The school district in Fayetteville, Arkansas may proclaim that they have a zero tolerance policy, but clearly they have chosen to look the other way in the case of Billy Wolfe.

I don't know Billy Wolfe. He may be the nerdiest kid on the planet. He may be the most annoying kid on the planet. He may be the nicest kid on the planet. But nobody should have to endure what he's gone through since grade school. I find it incredible that school officials actually tried to blame Billy for the bullies behavior, claiming "perhaps he brought this on himself."
There are video tapes showing the beatings Billy has suffered at the hands of these bullies, and yet no criminal charges have been filed. So, I guess that means in Fayetteville, Arkansas, if you're a high school student and your victim is Billy Wolfe, then it's not assault. It's just some high school kids having a little fun. If these were adults just having a little bit of the same kind of fun, they'd be in jail right now.

The Wolfes had tried talking to the parents of the bullies and appealing to school officials, to no avail. Now the Wolfes are taking a more aggressive approach, not only are they suing at least one of the bullies, they've also gone public, with Billy's story on the front page on the New York Times and an appearance on the TODAY show. Unfortunately, many times it takes filing a lawsuit in order to secure justice. It's my hope that they hold the Fayetteville school district accountable as well.

And people wonder why the tragedies like Columbine or the Virginia Tech shootings occur. I hope Billy Wolfe would never feel that desperate, but at least he knows his parents are willing to fight for him. What happened at Columbine High School and Virginia Tech will never be okay, but it's a little easier to understand. How much does a kid have to take before he snaps?

Originally posted at InjuryBoard by Linda Snyder

Fentanyl Pain Patch Recall Part Two

Linda Snyder — Fri, 21 Mar 2008 18:29:16 GMT

Actavis Group, just announced they have expanded their recall to include all of its fentanyl pain patches sold in the United States. In mid-February, PriCara, and Actavis Group, both announced that Fentanyl Duragesic Patches were being voluntarily recalled as a precaution from wholesalers and pharmacies.

Fentanyl pain patches are used to treat patients suffering from moderate to severe chronic pain that cannot be treated by short-acting or non-narcotic pain products. Fentanyl is a powerful narcotic gel that if comes in direct contact with a patient's or caregiver's skin, it may cause difficulty breathing, produce life-threatening side effects and even death.

I've often wondered what really goes on behind closed doors at a pharmaceutical manufacturing plant. Did someone say "Oh No! I messed up these patches, oh well, it's no big deal". Do they have quality control procedures in place? Did someone actually take responsibility and notify management that there was a problem? Did management listen? Or, did they choose to wait it out and hope it would go away? Did they figure the cost of a recall (and even a few lawsuits) would be more cost effective than stopping production?

Was it a faulty design? How extensively do they test a product before they allow it go on the market? PLOS Medicine, an online medical journal conducted a study using numbers from 2004 and concluded that pharmaceutical companies spent almost twice as much on marketing than on their research and development for their United States markets. That answers that question.

How many people were either injured or died before this product was recalled. These are all questions I wonder about whenever I come across a new recall.

According to the FDA website, Activis claims they are "unaware of any injuries resulting from this issue" and "as a precaution, is recalling these lots."

Yet, in June 2007 the family of 28 year old Adam Hendelson was awarded $5.5 million by a Florida jury. Tests confirmed that Hendelson had three times the lethal dose of fentanyl in his system when he died. I'm guessing he wasn't wearing three patches.

Imagine my surprise, after further research I found that this is not the first recall of Duragesic pain patches. In 2004 fentanyl patches were recalled over a similar issue and in 2005, the Food and Drug Administration issued an alert in response to a number of deaths potentially linked to defective patches.

I'm no brain surgeon, but if this is not the first recall and there was a $5.5 million judgement, then it answers one of my questions...did management know about the problem? Seems like they did.

Originally posted at InjuryBoard by Linda Snyder

Heparin Scare Spreads to Germany

Linda Snyder — Fri, 07 Mar 2008 20:39:26 GMT

Adverse reactions have now been linked to heparin made in Germany by Rotexmedica GmbH. German authorities had recalled an unspecified amount of heparin. Germany has reported fewer than 100 cases of patients suffering severe allergic reactions and shock, and no deaths.

It seems the problem lies, not only with Baxter, but with other manufacters as well. The FDA is now asking all companies in the United States that produce heparin to test their product using two new procedures. I wonder why it didn't occur to the FDA to test heparin produced from other companies before now? Which begs the questions, is the FDA really doing its job?

Food and Drug officials said Wednesday that its possible a counterfeit ingredient had been found in certain batches of heparin that have been linked to at least 19 deaths in the United States and more than 700 severe allergic reactions. Complex testing, utilizing nuclear magnetic resonance spectroscopy and capillary electrophoresis, are the only tests that can uncover whether the drug contains this counterfeit ingredient. Federal officials said they could not yet say that the contaminant, which mimics real heparin, caused the reactions.

Until yesterday, federal investigators had been focusing on heparin manufactured by Baxter International. German health authorities told the FDA that Baxter did not make the heparin linked to two separate outbreaks of allergic reactions in that country. Last week, Baxter recalled nearly all of its heparin products. Erin Gardiner, a spokeswoman for Baxter, said reports that her company was not responsible for making the suspect heparin in Germany would most likely point to a problem with the suppliers of crude heparin. "The news today indicates that the issue could be further back in the supply chain,"

Baxter bought the active pharmaceutical ingredient for its heparin products from Scientific Protein Laboratories, based in Waunakee, Wis., which has plants in Wisconsin and Changzhou, China. All of the suspect heparin was made from raw heparin produced in China. In some cases, those supplies were produced in small, unregulated family workshops, according to heparin traders and producers in China. In a statement released Thursday, Scientific Protein Laboratories said, "We believe this demonstrates that the heparin problem is not within Changzhou SPL's or Baxter's manufacturing facilities but our investigation into the root cause of the problem will continue."

On Wednesday, Scientific Protein Laboratories announced a recall of some of its product, the active ingredient in heparin.

In the first half of last year, China exported heparin products to 42 countries and regions, according to a September 2007 report by the China Chamber of Commerce for Import and Export of Medicines and Health Products. China exported the most heparin products, about 13 tons, to Germany. It also sent 11 tons to France and about 10 tons to the United States.

Most supplies of heparin in the United States are now from APP Pharmaceuticals, of Schaumburg, Ill. APP's supplies have undergone the new tests.

Representative John D. Dingell, the Michigan Democrat who is the chairman of the House Energy and Commerce Committee, charged in a statement released Thursday that the F.D.A. "is drowning in drug imports that it is not able to properly regulate."

So I'm not the only who thinks the FDA isn't doing its job.

Originally posted at InjuryBoard by Linda Snyder

Early Warning Signs of Ovarian Cancer

Linda Snyder — Thu, 28 Feb 2008 18:34:45 GMT

There may be early warning signs that are indicators of ovarian cancer. Although some doctors describe the symptons as vague, any symptoms, no matter how "vague", are better than none.

Because there are no obvious symptoms and there is no standard screening test, ovarian cancer is usually diagnosed in the late stages after it has spread to other parts of the body. Even a few months' delay in making the diagnosis may be the between life and death since the tumors can grow and spread quickly through the abdomen to the intestines, liver, diaphragm and other organs.

If you notice any of these symptoms that persist for 2 weeks or more, you should contact your doctor immediately.

-Bloating
-Pelvic or abdominal pain
-Difficulty eating or feeling full quickly
-Urinary urgency or frequency.

And be persistant. Some doctors have dismissed these symptoms as signs of getting older or going through menopause.

These indicators are now supported by several medical and advocacy organizations including the American Cancer Society, the National Ovarian Cancer Coalition, the Gynecologic Cancer Foundation, and the Society of Gynecologic Oncologists. Some doctors feel uncomfortable using these new symptoms because they are vague and by the time you notice the symptoms, your cancer is already at an advanced stage. Hmmmm...so the logic of catching the cancer as early as possible doesn't apply to ovarian cancer? Or, you're so far gone there's nothing we can do for you, so it doesn't matter anyways! Are you kidding me. Let's ask one of those doctors they'd have them same opinion if we were talking about prostate cancer.

Tate Thigpen, director of medical oncology at the University of Mississippi Medical Center responds to the idea that it can't hurt if it saves a month or two of cancer growth, "It can hurt, by creating anxiety in patients who develop these symptoms. Odds are they are not going to have ovarian cancer." Personally, I think I'd rather suffer a little anxiety and not have ovarian cancer, than have absolutely no chance at all because I didn't know that some of my symptons were indicators of ovarian cancer.

Daniel Donato, a gynecologist at the Rocky Mountain Cancer Center in Denver, Colorado supports the new list. "Everyone burshes off these symptoms," he says. "But ovarian cancer is high on the list of killer cancers because we don't pick it up fast enough."

The National Cancer Institue estimates in 2008, there have been 21,650 new cases of ovarian cancer reported in the United States with 15,520 deaths.

According to Donato, "Cure rates for stage three or four cancers are about 35 percent. Cure rates for stage one and two are about 90 percent."

I'll take those stage one or two odds anyday. And if some "vague" early detection indicators will help with those odds, then it is a good thing.

Originally posted at InjuryBoard by Linda Snyder

A Friend in Need of a Kidney Transplant

Linda Snyder — Mon, 25 Feb 2008 17:32:59 GMT

Imagine the hope and excitement of graduating from high school and looking forward to the next, both exhilarating and terrifying chapter of your life as you head for college to pursue career of your dreams.

Imagine the devastation as you learn you have a serious disorder that will put those dreams on hold and in fact threatens your very life.

This is Kelsey Crider's story. A bright, articulate young woman, Kelsey Crider's future looked promising as she was headed for Ft. Lewis College in Durango, Colorado. Two weeks after graduation, Kelsey had some routine blood work done. Initial tests came back indicating she was anemic and her hematocrit was low. Retesting revealed that Kelsey had Medullary Cystic Kidney Disease, a hereditary disorder in which cysts develop deep with both kidneys. The kidney gradually loses its ability to function. At this point, Kelsey's kidney was only functioning at 12%. She was suffering from kidney failure and needed a kidney transplant.

Fortunately, Kelsey's father was a match and the transplant went beautifully. Unfortunately, even after a heroic fight and a lengthy hospital stay, Kelsey's body rejected her new kidney. She is now on dialysis 3 days a week at four hours each session. Throughout her ordeal Kelsey has persevered with a smile on her face and positive attitude.

Her dream of attending college to become a photographer has been put on hold as Kelsey focuses on recovering from her surgeries and massive doses of anti-rejection medication. Her doctor has advised that her body needs to rest and heal before they attempt another surgery. In the meantime, we want to find her another donor.

Whether you consider becoming a living kidney donor or can pass this story on to your contacts, let's do what we can help this family and give this young lady a chance to reach her dreams.

To learn more, please contact Steve Crider at rockymtngatr@yahoo.com or call 303.530.2929.

Originally posted at InjuryBoard by Linda Snyder